Failure to File a Family Case Plan as Non‑Structural Error and the Centrality of Parental Acknowledgment in Abuse‑and‑Neglect Dispositions: Commentary on In re K.F., W.W., and P.W.

Failure to File a Family Case Plan as Non‑Structural Error and the Centrality of Parental Acknowledgment in Abuse‑and‑Neglect Dispositions:
Commentary on In re K.F., W.W., and P.W.

I. Introduction

The Supreme Court of Appeals of West Virginia’s memorandum decision in In re K.F., W.W., and P.W., No. 24‑734 (Nov. 4, 2025), addresses two recurrent issues in child abuse and neglect litigation:

  • What remedy, if any, is required when the Department of Human Services (“DHS”) fails to file a statutorily required family case plan after granting an improvement period?
  • To what extent may a circuit court rely on a parent’s continued denial of abuse or neglect to find that there is no reasonable likelihood the conditions can be remedied and to terminate parental rights?

The petitioner mother, J.B., appealed a Harrison County order terminating her parental and custodial rights to three children—K.F., W.W., and P.W. She argued principally that the DHS’s failure to file a family case plan undermined her improvement period, rendering it unfair to deny her a further post‑dispositional improvement period and to terminate her rights. She also raised generalized complaints regarding DHS’s services and alleged ineffective assistance of counsel.

The Supreme Court affirmed termination. The decision clarifies that:

  • DHS’s failure to file a family case plan, while erroneous, does not automatically require reversal. The parent must show that the omission prejudiced her or that the process was “substantially disregarded or frustrated.”
  • Even robust participation in services will not prevent termination where a parent fails to genuinely acknowledge the abuse or neglect; such denial renders the problem “untreatable” and justifies a finding of no reasonable likelihood of correction.
  • West Virginia continues to decline to recognize an independent claim of ineffective assistance of counsel in abuse and neglect appeals.

Although issued as a memorandum decision under Rule 21 (and therefore not formal binding precedent in the same way as a signed opinion), the Court’s reasoning builds on and applies existing precedents in a way that is highly instructive for future cases.

II. Factual and Procedural Background

A. Initiation of the Abuse and Neglect Case

In August 2023, DHS filed an abuse and neglect petition alleging that J.B.:

  • Engaged in domestic violence in the children’s presence;
  • Abused substances, specifically methamphetamine and amphetamine;
  • Maintained deplorable and unsanitary living conditions; and
  • Exposed the children to a drug‑endangered environment.

The case began when CPS intervened after an incident of domestic violence between the mother and the father of two of the children (W.W. and P.W.). During an unannounced home visit, a CPS worker found the home in extremely poor condition and observed that J.B. appeared under the influence and unable to perform basic parenting tasks. A requested drug screen was positive for amphetamine and methamphetamine.

B. Adjudication and Stipulated Neglect

At the adjudicatory hearing in October 2023, J.B. submitted a written stipulation. The circuit court carefully reviewed the stipulation with her on the record to ensure she:

  • Understood its terms; and
  • Voluntarily agreed to it.

In the stipulation, J.B. admitted that:

  • She had been a victim of domestic violence in the children’s presence;
  • She had tested positive for amphetamine and methamphetamine; and
  • She had a substance abuse problem that resulted in the children’s neglect.

The stipulation also detailed “the manner in which [these] problems and deficiencies” would be addressed. It required, among other things, that J.B.:

  • Submit to random drug testing;
  • Participate in parenting classes;
  • Attend individual therapy;
  • Follow all service providers’ recommendations; and
  • Provide honest information to the multidisciplinary team (MDT).

The circuit court adjudicated J.B. as a neglectful parent and the three children as neglected children.

C. Post‑Adjudicatory Improvement Period and the Missing Family Case Plan

J.B. then moved for a post‑adjudicatory improvement period, reiterating in writing:

  • Her acceptance of the stipulation’s conditions; and
  • Her recognition of the need for drug and alcohol treatment as recommended by the MDT.

In November 2023, the circuit court:

  • Granted J.B.’s motion for a post‑adjudicatory improvement period; and
  • Ordered DHS to submit a family case plan outlining the terms and conditions of that improvement period.

Under West Virginia Code § 49‑4‑408 and Rule 37 of the Rules of Procedure for Child Abuse and Neglect Proceedings, DHS must file such a family case plan within 30 days of the granting of an improvement period. It is undisputed that no family case plan was ever filed.

D. Dispositional Hearing and Request for a Post‑Dispositional Improvement Period

The dispositional hearing occurred in October 2024, approximately 15 months after the children’s removal. Before that hearing, J.B. moved for a post‑dispositional improvement period, seeking further time and services rather than termination of her rights.

At disposition, J.B. testified that she:

  • Had stopped taking prescribed lithium in July 2024 after it caused her to fall asleep during a supervised visit;
  • Was participating in online substance abuse support meetings and intensive outpatient treatment, though she admitted she had “missed a few” sessions;
  • Initially expressed confusion about whether she had been granted a post‑adjudicatory improvement period but ultimately conceded she had “been on an improvement period this past year”;
  • Admitted that she used methamphetamine “a handful of times” during the improvement period, which she knew violated its terms; and
  • Interpreted the MDT’s recommendation of inpatient treatment as a mere “suggestion.”

Regarding a July 2024 positive drug screen for methamphetamine and amphetamine, J.B. first attributed it to “stepp[ing] on a meth pipe,” but at disposition admitted that it reflected a methamphetamine relapse. She nevertheless insisted she did not have a methamphetamine “problem,” stating:

“No, I had a relapse and I’m good. I’ve been getting help.”

J.B. admitted she did not disclose this relapse during MDT meetings and had previously denied using methamphetamine. She also testified that “[the children] never should have been taken in the first place,” though she later claimed that her similar statements to service providers had been taken “completely out of context.” When asked by her counsel whether she had parenting deficiencies requiring court intervention, she answered “yes” but did not meaningfully elaborate.

E. Evidence From Service Providers and CPS

Multiple witnesses testified about:

  • J.B.’s continued denials of substance abuse; and
  • Her repeated statements that the children should never have been removed.

Key testimony included:

  • Parenting services provider:
    • J.B. was aware of her positive drug screens but typically denied them, suggesting “false positives” or blaming “an excess amount of medication.”
    • J.B. repeatedly stated that the children should not have been removed from her care.
  • CPS worker:
    • J.B. continued to deny methamphetamine use when confronted with drug screen results.
    • J.B. told the CPS worker that the children should not have been removed.
    • The MDT recommended inpatient treatment multiple times; J.B. refused, insisting she did not have a drug problem.
    • When J.B. finally attempted inpatient admission, her last positive drug screen was more than 30 days old, disqualifying her from the program.
    • Despite 15 months of services, J.B. had not progressed enough to expand the duration or structure of supervised visits.
  • Intensive outpatient counselor:
    • J.B. acknowledged substance abuse issues in treatment sessions.
    • She had missed 8 of 18 meetings, submitting excuses for many but not all.

F. Supervised Visitation Problems

Visitation supervisors reported ongoing concerns:

  • In July 2024, one visit was terminated when J.B. fell asleep “in an upright position.” J.B. blamed exhaustion from consecutive visit days.
  • In August 2024, another visit ended based on concern that J.B. was under the influence; she later attributed her behavior to lithium and said she had stopped taking it.
  • J.B. repeatedly told a visitation supervisor that the children should not have been removed.
  • J.B. ended at least two recent visits with K.F. early, not using her full allotted visitation time.

The CPS worker concluded that, after 15 months, J.B. had not progressed sufficiently to move beyond supervised visits, and given her ongoing denial of responsibility, there were no additional services that would likely correct her deficiencies. DHS therefore recommended termination.

G. Circuit Court’s Dispositional Findings and Order

The circuit court terminated J.B.’s parental and custodial rights, finding in substance:

  • J.B. tested positive for illegal substances four times between November 2023 and July 2024.
  • She denied drug use to multiple people involved in the case for months and only acknowledged her relapse and methamphetamine use during the improvement period at the dispositional hearing.
  • She appeared “unable or unwilling to fully parent” even during supervised visits; she could not manage even one child for a sustained period.
  • Critically, she continued to insist that the children should never have been removed from her care.
  • Her persistent denial rendered the underlying problems “untreatable,” and she had made “little to no progress” in correcting the conditions of neglect despite more than a year of services.
  • The issue was not lack of participation—she did participate in services—but rather her “continued failure” to meaningfully acknowledge that:
    • neglect had actually occurred; and
    • she needed to make substantive changes.
  • Her acknowledgments amounted only to “token” admissions of “some minor parenting deficits.”

On this basis, the court:

  • Denied J.B.’s motion for a post‑dispositional improvement period, finding it would be an exercise in futility and contrary to the children’s best interests.
  • Found no reasonable likelihoodW. Va. Code § 49‑4‑604(d).
  • Found that termination was required for the children’s welfare, under § 49‑4‑604(c)(6).

As to permanency:

  • K.F.’s father is deceased; the permanency plan is adoption in the current placement.
  • W.W. and P.W.’s father (J.W.) successfully completed his improvement period and was reunified with them; their plan is to remain in his custody.

III. Summary of the Supreme Court’s Decision

On appeal, the Supreme Court:

  1. Affirmed the termination of J.B.’s parental and custodial rights, holding that:
    • The circuit court did not err in denying a post‑dispositional improvement period; and
    • The statutory standards for termination were met.
  2. Held that although DHS plainly violated Rule 37 and W. Va. Code § 49‑4‑408 by failing to file a family case plan:
    • This error did not warrant vacating the dispositional order; and
    • The record showed J.B. knew what problems she had to address and what services were required to regain custody, so she failed to show prejudice or a substantial frustration of the process.
  3. Reaffirmed that:
    • Participation in services during an improvement period is only one factor; and
    • The best interests of the child remain the controlling standard at disposition.
  4. Emphasized that J.B.’s:
    • Persistent denial of her role in the children’s removal; and
    • Failure to acknowledge the seriousness of her substance abuse and neglect
      rendered further improvement efforts futile and established “no reasonable likelihood” of correction.
  5. Declined to consider J.B.’s additional claim that DHS did not provide adequate services because:
    • She failed to show when or how these issues were raised before the circuit court (violating Appellate Rule 10(c)(7)); and
    • To the extent she asserted ineffective assistance of counsel, the Court reiterated that it has not recognized an ineffective assistance claim in abuse and neglect cases.

IV. Analysis

A. Statutory and Procedural Framework

1. Family Case Plan Requirement

Under W. Va. Code § 49‑4‑408 and Rule 37 of the Rules of Procedure for Child Abuse and Neglect Proceedings:

  • When the court grants an improvement period, DHS must prepare and file a family case plan within 30 days.
  • The purpose of the family case plan, as articulated in In re Desarae M., 214 W. Va. 657, 591 S.E.2d 215 (2003), is to:
    • Identify the family’s problems; and
    • Lay out realistic steps and services to resolve or reduce those problems.

The family case plan thus functions as a roadmap both for DHS and for the parent, defining:

  • What problems the State believes exist; and
  • Exactly what the parent must do to safely reunify with the child.

2. Improvement Periods

West Virginia law provides several types of improvement periods (pre‑adjudicatory, post‑adjudicatory, and post‑dispositional). In simplified terms, an improvement period is:

  • A time‑limited opportunity for a parent to correct conditions of abuse or neglect through services and treatment, under court supervision.

Here, J.B. received a post‑adjudicatory improvement period after she was adjudicated a neglectful parent. She later sought, but was denied, a post‑dispositional improvement period at the termination stage.

3. Dispositional Standards and Termination

Dispositional decisions in abuse and neglect cases are governed by W. Va. Code § 49‑4‑604. Two subsections are central here:

  • § 49‑4‑604(d) – “No reasonable likelihood that conditions of neglect or abuse can be substantially corrected” is defined to include situations where:
    • The parent has “demonstrated an inadequate capacity to solve the problems of abuse or neglect on [her] own or with help.”
  • § 49‑4‑604(c)(6) – Authorizes termination of parental rights when:
    • There is no reasonable likelihood that the conditions can be substantially corrected in the near future; and
    • Termination is necessary for the welfare of the child.

4. Standard of Appellate Review

Under syllabus point 1 of In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011):

  • Factual findings of the circuit court are reviewed under a clearly erroneous standard; and
  • Conclusions of law are reviewed de novo (fresh, without deference).

B. Precedents Cited and Their Influence on the Decision

1. In re Desarae M. and State ex rel. DHS v. Cheryl M. – Purpose of the Family Case Plan

The Court relied on syllabus point 2 of In re Desarae M., quoting syllabus point 5 of State ex rel. W. Va. Dep’t of Hum. Servs. v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (1987):

“The purpose of the family case plan . . . is to clearly set forth an organized, realistic method of identifying family problems and the logical steps to be used in resolving or lessening these problems.”

By invoking these cases, the Court framed the key inquiry: even though DHS failed to file the formal case plan, did J.B. nevertheless:

  • Understand the family problems identified by the State; and
  • Know the steps she needed to take to correct those problems?

The Court answered “yes,” emphasizing that:

  • Her stipulation explicitly described both the problems (substance abuse, domestic violence in the children’s presence, neglect) and the required services (drug testing, therapy, parenting classes, compliance with MDT).
  • The circuit court painstakingly reviewed these terms with her.
  • She reaffirmed them in her own written motion for a post‑adjudicatory improvement period.

Thus, the failure to file the case plan did not, in the Court’s view, deprive her of the knowledge or structure the plan is designed to provide.

2. In re Edward B. – When Procedural Defects Require Vacatur

The Court cited syllabus point 5 of In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001), which holds that dispositional orders must be vacated when the abuse and neglect proceeding has been:

“substantially disregarded or frustrated.”

Edward B. stands for the principle that not every procedural misstep warrants reversal. Instead, the appellate court examines whether the defect:

  • Meaningfully undermined the fairness or integrity of the process; or
  • Deprived the parent of their statutory or constitutional protections in a substantial way.

Here, although the Court acknowledged that DHS violated statutory and rule‑based obligations by not filing a family case plan, it concluded that:

  • The process was not “substantially disregarded or frustrated.”
  • J.B. was fully informed of the problems and the services expected of her, particularly via her stipulation and participation in MDT meetings.

This effectively applies a form of harmless error/prejudice analysis to the failure to file a case plan.

3. In re H.D. (2024 Memorandum Decision) – Direct Analogue

The Court also referenced In re H.D., No. 23‑148, 2024 WL 4503958 (W. Va. Oct. 16, 2024), another memorandum decision in which the DHS failed to file a family case plan. There, as here, the Court:

  • Affirmed termination despite the missing plan; and
  • Emphasized that the parent “knew what was required to successfully address the conditions of abuse and neglect.”

By citing H.D., the Court underscored that the failure to file a family case plan does not create an automatic or “structural” error. Instead, the key question is whether the parent had actual notice and understanding of the tasks necessary for reunification.

4. In re B.H. – Compliance vs. Best Interests

The Court relied on syllabus point 4 of In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014), which states that:

“The level of a parent's compliance with the terms and conditions of an improvement period is just one factor to be considered. The controlling standard that governs any dispositional decision remains the best interests of the child.”

This precedent directly addresses J.B.’s argument that her participation in services should have justified another improvement period rather than termination. The Court made clear that:

  • Service participation is not dispositive;
  • The quality and results of that participation—and particularly whether the parent internalizes the need for change—are critical; and
  • The ultimate question always remains: what serves the child’s best interests?

5. In re Timber M. and In re Charity H. – The “Acknowledgment” Doctrine

The decision draws heavily on In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (2013), and In re Charity H., 215 W. Va. 208, 599 S.E.2d 631 (2004), particularly the oft‑quoted language:

“Failure to acknowledge the existence of the problem, i.e., the truth of the basic allegation pertaining to the alleged . . . neglect . . . results in making the problem untreatable and in making an improvement period an exercise in futility at the child's expense.”

These cases articulate what is sometimes called the “acknowledgment doctrine” in West Virginia abuse and neglect law: a parent who refuses to recognize the reality of their abuse or neglect renders effective treatment impossible, justifying denial of improvement periods and supporting a finding of no reasonable likelihood of correction.

In In re K.F., W.W., and P.W., the Court applied this doctrine squarely:

  • J.B. repeatedly denied having a methamphetamine problem, describing her use simply as a “relapse.”
  • She minimized her conduct by insisting the children never should have been removed.
  • Although she made some admissions (e.g., answering “yes” to having parenting deficiencies), the Court characterized these as mere “token acknowledgment” of minor issues rather than a genuine acceptance of responsibility.

Given this, the Court concluded that further improvement efforts would be futile and harmful to the children, echoing Timber M. and Charity H..

6. In re H.C. and In re J.F. – Ineffective Assistance of Counsel in Abuse and Neglect Cases

Finally, the Court cited two prior memorandum decisions, In re H.C., No. 12‑0471, 2012 WL 4838995 (W. Va. Sept. 24, 2012), and In re J.F., No. 12‑0097, 2012 WL 4069520 (W. Va. Sept. 7, 2012), where it refused to recognize a claim of ineffective assistance of counsel in the abuse and neglect context.

In the present case:

  • The Court noted that it has “never recognized” such a claim and declined to do so again.
  • This confirms the Court’s continuing reluctance to import criminal‑style Strickland claims into civil child welfare proceedings.

C. The Court’s Legal Reasoning

1. The Missing Family Case Plan: Harmless Error, Not Structural Defect

The mother’s core appellate argument was that DHS’s failure to file a family case plan:

  • Violated Rule 37 and W. Va. Code § 49‑4‑408; and
  • Should require reversal of the denial of another improvement period and of the termination order.

The Court agreed that:

  • DHS had a clear legal obligation to file the plan; and
  • It was undisputed that this did not happen.

However, the Court rejected the idea that this error automatically tainted the proceedings. Instead, relying on Desarae M., Cheryl M., Edward B., and H.D., the Court asked:

  • Did the absence of a formal written plan actually impair J.B.’s understanding of her obligations?
  • Did it substantially disregard or frustrate the abuse and neglect process?

The Court found that it did not, primarily because:

  • J.B.’s own stipulation expressly detailed:
    • The nature of her neglect (substance abuse, exposure to domestic violence); and
    • The services and behavioral changes required (drug screens, therapy, parenting classes, MDT cooperation).
  • The circuit court carefully reviewed each element of that stipulation with her at adjudication.
  • J.B. reaffirmed those obligations in her written motion for a post‑adjudicatory improvement period, including her acceptance of drug and alcohol treatment.
  • At disposition, J.B. expressly acknowledged:
    • That she had been on an improvement period for the past year; and
    • That her methamphetamine use during that period violated its terms.
  • She participated in MDT meetings and communications with her CPS worker where:
    • Her substance abuse was repeatedly discussed; and
    • Recommendations, including inpatient treatment, were clearly conveyed.

Taken together, these facts led the Court to conclude that the statutory purpose of the family case plan—clarifying the problems and the steps to fix them—was in effect achieved through other means. Therefore:

  • The error was not harmless in a strict sense (it remained a violation), but
  • It was non‑prejudicial and did not justify vacating the dispositional order.

2. Denial of a Post‑Dispositional Improvement Period: Futility and Best Interests

J.B. sought a further improvement period at the dispositional stage, arguing that:

  • She had engaged with services, including outpatient treatment; and
  • She was making progress, having stopped lithium and participated in support meetings.

The Court, however, highlighted that:

  • She had relapsed on methamphetamine multiple times during the improvement period; and
  • She consistently minimized or denied her substance abuse and her responsibility for the children’s removal.

Applying B.H. and the “acknowledgment doctrine” from Timber M. and Charity H., the Court concluded that:

  • Compliance in the sense of showing up for services is not enough.
  • Services are effective only if the parent:
    • Admits that a serious problem exists; and
    • Engages honestly and deeply in remedying it.
  • J.B.’s refusal to fully acknowledge:
    • Her substance abuse as a continuing problem; and
    • Her role in the children’s removal
      rendered further improvement efforts an “exercise in futility at the child’s expense.”

Accordingly, the Court agreed with the circuit court that a post‑dispositional improvement period would not serve the children’s best interests.

3. “No Reasonable Likelihood” of Correction and the Welfare of the Children

Given J.B.’s:

  • Extended history of substance abuse and positive drug screens during the improvement period;
  • Inconsistent participation in outpatient treatment;
  • Failure to pursue inpatient treatment as repeatedly recommended; and
  • Inability to safely and consistently parent even in a supervised setting;

the Court held that the circuit court appropriately found “no reasonable likelihood” that the conditions of neglect could be corrected in the near future under § 49‑4‑604(d).

The Court further endorsed the finding that termination was necessary for the children’s welfare. It reiterated an important principle:

“In the absence of recognition by a parent that . . . neglect has occurred, the children remain[] at risk and it is not safe to return the children to that parent.”

This focus firmly situates the disposition in the best interests of the children, rather than centering on the parent’s desire for additional chances.

4. Treatment of Additional Assignments of Error

J.B. raised an additional assignment of error asserting:

  • That DHS failed to properly provide services (e.g., poor communication, failure to secure adequate providers); and
  • An implied claim of ineffective assistance of counsel.

The Court disposed of these claims on procedural and substantive grounds:

  • Procedural waiver:
    • Under W. Va. R. App. P. 10(c)(7), an appellant must show “when and how” each assignment of error was presented below.
    • J.B. failed to provide such pinpoint citations; the Court therefore treated these claims as not properly preserved for appeal.
  • No recognized ineffective assistance claim:
    • The Court again noted that it has never recognized an ineffective assistance of counsel claim in abuse and neglect proceedings, citing H.C. and J.F..
    • It refused to do so here.

This maintains the existing doctrinal boundary between criminal and civil child welfare proceedings in West Virginia.

V. Simplifying Key Legal Concepts

1. Abuse and Neglect

  • Neglect: Generally, a parent’s failure to provide necessary care, supervision, or a safe environment, exposing the child to harm or substantial risk of harm. Here, neglect included:
    • Exposing the children to domestic violence;
    • Substance abuse by the parent; and
    • Deplorable home conditions and a drug‑endangered environment.

2. Adjudication vs. Disposition

  • Adjudication: The phase where the court decides whether the child was abused or neglected, and whether the parent is an “abusing” or “neglectful” parent. In this case, J.B. was adjudicated a neglectful parent based on her stipulation.
  • Disposition: After adjudication, the court decides what should happen to the child and the parent‑child relationship:
    • Improvement periods;
    • Custody arrangements;
    • Termination or lesser remedies.

3. Improvement Period

  • An improvement period is a defined time (under court supervision) during which:
    • The parent receives services; and
    • Attempts to correct the problems that caused the child’s removal.
  • It is not a right; it is a discretionary benefit the court may grant if it believes there is a realistic chance of improvement without unduly delaying permanency for the child.

4. Family Case Plan

  • A family case plan is a written document prepared by DHS that:
    • Lists the specific problems (e.g., substance abuse, poor housing); and
    • Sets out the concrete steps (therapy, classes, treatment, drug testing, etc.) that the parent must take to remedy them.
  • By statute and rule, it must be filed within 30 days after the granting of an improvement period.

5. “No Reasonable Likelihood” of Correction

  • When the court finds no reasonable likelihood that the conditions of neglect or abuse can be corrected in the near future, it means:
    • Even with help and services, the parent is not likely to remedy the problems in a timeframe consistent with the child’s need for stability and safety.
  • Indicators include:
    • Ongoing substance abuse;
    • Failure to benefit from services;
    • Persistent denial of the problems.

6. Best Interests of the Child

  • The best interests of the child is the governing standard at disposition. It asks:
    • What arrangement will most protect the child’s safety, stability, and emotional well‑being?
  • Even if a parent is working on their issues, the court may terminate rights if:
    • The child cannot safely wait longer; or
    • The parent’s progress is too slow or superficial.

7. Standard of Review – “Clear Error” and “De Novo”

  • Clear error: The appellate court will not disturb the trial court’s factual findings unless they are plainly wrong in light of the evidence.
  • De novo: The appellate court gives no deference to the lower court’s legal conclusions and decides them anew.

8. Ineffective Assistance of Counsel in Abuse and Neglect Cases

  • In criminal cases, defendants can claim their lawyer’s performance was constitutionally deficient and prejudicial (ineffective assistance).
  • In West Virginia abuse and neglect cases, the Supreme Court has consistently declined to recognize a similar claim, even though parents have statutory rights to counsel.

VI. Impact and Implications

A. The Family Case Plan Requirement: Prejudice Is Key

This decision reinforces that DHS’s failure to file a family case plan:

  • Is a legal error; but
  • Will not automatically result in reversal of a termination order.

Instead, following Edward B. and H.D., the Court demands a showing that:

  • The error substantially disregarded or frustrated the abuse and neglect process; or
  • The parent was deprived of meaningful notice of the problems and the remedial steps required.

Practically, this means:

  • DHS and Circuit Courts:
    • Should continue to treat the family case plan requirement as mandatory—failure to comply may lead to reversal in cases where the parent is not otherwise fully informed.
    • Should ensure that, at a minimum, stipulations and in‑court colloquies clearly explain the problems and required services, to mitigate potential prejudice if the plan is delayed or omitted.
  • Parent’s Counsel:
    • Should preserve and develop a record of how the absence of a plan concretely confused or disadvantaged the parent, if such prejudice exists.
    • Should object timely to the non‑filing, and clarify on the record what expectations are unclear.

B. Acknowledgment and Insight as Determinants of Outcome

The decision again underscores that in West Virginia:

  • Substantive insight and acknowledgment of wrongdoing are often more important than mere attendance or surface‑level participation in services.
  • Parents who:
    • Participate in services; but
    • Persistently deny that their conduct harmed their children
    may still face termination because the problems are deemed “untreatable.”

For parents and their counsel, this has significant strategic and ethical implications:

  • Parents might feel defensive or fearful of admitting substance abuse or neglect, but failure to do so can be fatal to reunification prospects.
  • Counsel must carefully advise clients about the legal importance of credible, consistent acknowledgment while also respecting constitutional rights against self‑incrimination (particularly where there is parallel criminal exposure).

C. The Role of Mental Health and Medication

Although not central to the Court’s legal analysis, the facts highlight a recurring tension:

  • J.B. was prescribed lithium, a psychotropic medication, which she claimed contributed to falling asleep during visits and to appearing impaired.
  • Her decision to stop taking lithium was framed as part of her remediation efforts, but also potentially raised concerns about unmanaged mental health issues.

Future cases may need to grapple more explicitly with:

  • How courts should evaluate parents’ necessary use of prescribed medications; and
  • How to distinguish impairment from necessary treatment side effects.

D. Ongoing Refusal to Recognize Ineffective Assistance Claims

The Court again declined to recognize ineffective assistance of counsel in abuse and neglect appeals. The immediate practical consequences are:

  • Parents cannot, at present, overturn terminations by arguing that their lawyer’s performance was constitutionally deficient, even if grossly substandard.
  • Relief for attorney failures is more likely to come through:
    • Ethical complaints and disciplinary channels; or
    • Possibly extraordinary writs in extreme situations (though the Court has not clearly opened that door).

This stance continues to be debated among scholars and practitioners, particularly in light of the severe, permanent nature of termination of parental rights.

E. Memorandum Decision as Persuasive Guidance

Because this is a Rule 21 memorandum decision, it is not a traditional published opinion with formal precedential weight. Nonetheless:

  • It applies and synthesizes existing published precedents in a way that is likely to be persuasive to circuit courts and practitioners.
  • It signals the Court’s current approach to:
    • Family case plan omissions;
    • Assessment of parental acknowledgment; and
    • Handling of alleged service deficiencies.

VII. Conclusion

In re K.F., W.W., and P.W. reaffirms several key principles in West Virginia abuse and neglect law:

  1. Failure to File a Family Case Plan Is Not Automatically Reversible Error.
    DHS’s failure to comply with § 49‑4‑408 and Rule 37 does not, by itself, compel vacatur of a disposition. The parent must show that the omission prejudiced them by undermining their understanding of the problems and the necessary remedial steps or otherwise substantially frustrated the process.
  2. Acknowledgment of Responsibility Is Central.
    The Court again stresses that parents who do not honestly acknowledge abuse or neglect—and their own role in it—render their problems effectively untreatable. Improvement periods exist to permit genuine change, not to reward nominal compliance while denial persists.
  3. Best Interests of the Child Remain Paramount.
    Even substantial engagement in services will not forestall termination where the child’s need for safety and permanency outweighs the prospects for meaningful parental change in the near future.
  4. No Ineffective Assistance Claim in Abuse and Neglect Appeals.
    The Court continues not to recognize a freestanding ineffective assistance of counsel claim in these civil proceedings.

For DHS, the decision is a reminder to adhere strictly to procedural requirements like family case plans. For parents and their counsel, it underscores that the path to reunification runs through genuine acknowledgment, consistent honesty, and demonstrable behavioral change—not mere attendance in services or formalistic compliance. For the courts, it provides further guidance on balancing procedural missteps against actual prejudice, always with the child’s best interests at the forefront.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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